Sex assault victims recount military system's failures

Feb. 26, 2014 - 06:00AM
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Retired Marine Lance Cpl. Jeremiah Arbogast, left, and former Army Pfc. Jessica Kenyon, both victims of sexual assault while in uniform, told lawmakers Feb. 26 that they felt betrayed by the military in the way their cases were handled. (Mike Morones)

Sen. Kirsten Gillibrand, D-N.Y., used the bully pulpit of her Senate Armed Services personnel panel chair on Feb. 26 to continue pressing for legislation that would strip military commanders of their authority to decide whether sexual assault cases should be referred for prosecution.

In a hearing on the relationship between sexual assault, post-traumatic stress disorder and suicide that featured two military veterans testifying of their experiences in the military system, Gillibrand said the 2014 National Defense Authorization Act, which included 36 provisions on sexual assault, has helped improve the system but does not go far enough to ensure victims get help.

“The Veterans Affairs [Department’s] own web site says that how the military handles military sexual assault has actually made PTSD worse. Quote: ‘Many victims are reluctant to report sexual trauma, and many victims say that there were no available methods for reporting their experiences to those in authority’ ... end of quote,” Gillibrand said.

In wrenching testimony, retired Marine Lance Cpl. Jeremiah Arbogast, a sexual assault victim who became a paraplegic after he tried to kill himself with a 9mm handgun, pleaded for change.

“While my perpetrator walked away with minimal consequences, I was formally retired from the U.S. Marine Corps due to military sexual trauma and post-traumatic stress disorder. I joined the Marines in order to serve my country as an honorable man. Instead, I was thrown away like a piece of garbage,” Arbogast said.

The Marine’s perpetrator, a staff sergeant once in Arbogast’s chain of command, was arrested and charged with sexual assault and sodomy. But he was found guilty of lesser charges and given a bad-conduct discharge.

Former Army Pfc. Jessica Kenyon has become a victim advocate since she was attacked while serving in uniform in Korea. Her attacker confessed and was busted two ranks, but allowed to stay on active duty. The woman was later accused of being an adulterer and eventually was discharged.

Kenyon described the crime as akin to incest.

“The betrayal aspect — very uncommon in civilian sexual assaults — is one of the feelings that I left the military feeling almost crushingly. ... If you were assaulted by your brother, which in many cases is psychologically quite similar, you go to your father, your commander. And say he didn't want to report it — how would you deal with that?” Kenyon said.

During the course of the hearing, defense officials briefly discussed new data on sexual assault or harassment reports. The Defense Department received 5,400 reports in fiscal 2013 of sexual assault or harassment, a 60 percent jump from fiscal 2012.

Pentagon officials attribute the rise in reports to a continuing increase in confidence among victims to come forward.

Nathan Galbreath, senior executive advisor to the Defense Department’s Sexual Assault Prevention and Response Office, also said the number of personnel reporting they had been sexually assaulted or harassed before they entered the military nearly tripled in 2013, from 4 percent in 2012 to 11.5 percent in 2013.

“The only real reason for our survivors to come forward in that situation is to get care and services that we offer through the sexual assault prevention response program,” Galbreath said. “We feel that’s real [progress].”

Gillibrand noted, however, that without more definitive data on incidence rates, there’s no way to truly assess the extent to which reporting has increased.

In 2011 and 2012, total reports rose but the estimated incident rate increased as well — which means reporting, on a percentage basis, actually decreased.

“Two out of ten rape victims are reporting today. I would not pat yourself on the back for two out of 10,” Gillibrand told defense officials.

She continues to push for her legislation, the Military Justice Improvement Act, and needs 60 colleagues to support it to prevent a filibuster. She remains convinced, from hearing from victims like Arobogast and Kenyon, that a change must be made.

“No matter where you fall on that debate, we can all agree that we must fully understand the long-term psychological toll on the survivors of sexual trauma in the military, and the best practices for effective treatment,” she said.

In January, a congressionally mandated Pentagon panel, the Response Systems to Adult Sexual Assault Crimes Panel, concluded that commanders should retain the authority to prosecute military sexual assault cases.

“The evidence does not support a conclusion that removing such authority will increase confidence among victims of sexual assault about the fairness of the military justice system or reduce their concerns about possible reprisal for making reports of sexual assault,” said panel member Barbara Jones, a former judge for the U.S. District Court for the Southern District of New York.

The panel has not yet issued its final report to Congress and the Defense Department.

The services have instituted several changes to help sexual assault victims, including creating special victims’ counsels to guide victims through the reporting and legal system.

The program is new, implemented across the services only in January. But it is starting to see results, Galbreath said

According to DoD, the number of victims who have been helped by the counsels and have decided to switch their reports of sexual assault from restricted to unrestricted — meaning the cases will be investigated — is about 50 percent.

“I believe this is a deal changer,” Galbreath said. “Outside the special victims counsel, the change is 14 to 15 percent.”

Lawmakers on both sides of the political aisle are split by the debate on changing the Uniform Code of Military Justice to address sexual assault cases.

Sen. Claire McCaskill, D-Mo., has offered her own bill, which would allow commanders to retain their authority but would remove their ability to dismiss court-martial convictions against perpetrators of sexual assault.